Law Schools: Add Wrongful Conviction to Core Curriculum

“Like many people, I [once] accepted one of the myths,” said Jeffrey Rosen, the New Republic’s legal affairs editor and law professor at George Washington University. The Los Angeles Times called Rosen “the nation’s most widely read and influential legal commentator.” A legal book author, he is a summa cum laude graduate of Harvard College, was a Marshall Scholar at Oxford University, and is a Yale Law School graduate. One of his specialty areas is criminal procedure. Yet, he recently humbly admitted that he’d gained a new understanding about our criminal justice system, namely, that it convicts the innocent far more often then most imagine.

“It’s impossible to maintain that position after you review the statistics in both of these books,” Rosen said.

Rosen had read both books in preparation to lead a discussion on wrongful criminal conviction at Georgetown Law last September 15 (2011). The event, reported here in Georgetown Law, was part of the Law Center’s annual Constitution Day, which celebrates and lifts up the Constitutional sacred rights that require our ongoing interpretation, diligence, and protection. Hosted by the Constitution Project, both books received the organization’s 2011 Constitutional Commentary Award.

The fact that Rosen could gain a new understanding on a subject in which he is a nationally recognized expert is not as surprising as one might think. The lessons of DNA, first used in a criminal case in the U.S. in 1989, are relatively recent. It has taken time, research, analysis, and the study of nearly 300 DNA-proven wrongful convictions to identify the lessons of DNA.

Even now as they have prompted best practices in criminal procedure that could reduce wrongful conviction, many practicing prosecutors, defense attorneys, judges, legislators, and law professors, are unaware of the scope of, contributors to, and remedies for miscarriages of justice.

My husband, Jim Petro, was into his fourth decade as an attorney and was Attorney General of Ohio when he was confronted with a wrongful conviction that changed his thinking, his advocacy, and his perspective on the justice system.

In the past two decades, we have observed a rash of reports of wrongful conviction. We no longer view these as anecdotal or unpreventable rare incidents of human error. Those who have focused on tragic miscarriages of justice, now know that wrongful conviction is not rare, nor is it simply human error. The contributors to and remedies for wrongful conviction are being debated in legislatures throughout the nation.

Our book False Justice is featured in three current law school publications (spring 2012 publications of Case Western Reserve Law’s In Brief, the previously mentioned article in Georgetown Law, and University of Cincinnati Law Professor Mark Godsey’s article in the Ohio State Journal of Criminal Law), an indication of the growing importance of the issue. Continuing legal education courses and forums such as the excellent one (here) at the Rochester Institute of Technology are also raising the topic.

All of these are critically important efforts to reach and educate practicing attorneys, judges, and legislators.

However, the lessons of wrongful conviction should not be lost on the next generation of lawyers. When I have asked law professors and deans of law schools if their curriculum includes wrongful conviction, the answer has been no. Some have said that wrongful conviction is sometimes included in legal ethics discussions, which is extremely important…perhaps the most critical issue of all.

Justice John Marshall Harlan referenced1 a classic legal question when he stated that a “fundamental value determination of our society” is that it is “far worse to convict an innocent man than to let a guilty man go free.” Tragically, this is not an either/or proposition, for when we convict an innocent person, we do both.

For all law graduates who aspire to become defense attorneys, prosecutors, judges, or legislators, the lessons of DNA-proven wrongful conviction are among the most important to be considered. They get to the very core of our overarching American commitment to provide justice for all, and they certainly should be in the core curriculum of every law school.

In addition to adding courses on wrongful convictions in law schools, I would suggest that the basics of our criminal justice system be taught in high schools. Innocent people who unwittingly get dragged into the system have no idea how it works in the real world. They find out too late that it’s nothing like what they see on TV.

Very good point, Martin. Sometimes it seems as if people who actually know something about criminal law are dismissed from serving on a jury. Justice would benefit if all citizens who serve would have a basic knowledge of the issues that can impact the reliability of evidence.

The number of wrongfully convicted, recently discovered, is extremely disturbing. How many other innocent people remain in prison? Also-the number of innocent people falsely accused and slandered , without being convicted, is probably staggering. These people also have their lives ruined in many cases. Changes in investigative practices have got to be made.

As a result of my daughters wrongful conviction; my life and hers have been destroyed. We suffer daily as we try to face a new day and at times you feel as if you just don’t want to go on any longer. The threats and fear of retaliation I’ve experienced have been haunting my child since we began this horrible ordeal. Standing by watching her health suffer and the pure sadness in her eyes rips my soul to peices. The only thing that brings any comfort to us is the fact that the Ohio Innocent Project under Mr. Godsey took our case. Auria Morales is with-out a doubt INNOCENT and deserves her Justice. I’d like to thank all the wonderful people who dedicate their lives to people like us; May our Creator bless you all……Michelle Clark-Morales of Cincinnati, Ohio…